SHAW v. STATE (2013)

Anthony Jabbar Shaw was tried by a Cobb County jury and convicted of the murder of Baron Harbin. Following the denial of his motion for new trial, Shaw appeals, contending that the evidence is insufficient to sustain his conviction, that the trial court erred when it failed to charge the jury that one acting in defense of self has no duty to retreat, and that he was denied the effective assistance of counsel. Upon our review of the briefs and record, we find no error, and we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that Baron and Myra Harbin were married in 2004, had several children, and separated in August 2007. After the separation, Myra lived with Shaw. On June 21, 2009, Baron made arrangements to meet Myra at a gas station to return the children, who had been visiting with Baron. But instead of going to the gas station, Baron drove the children to the apartment that Shaw and Myra shared. When he arrived at the apartment, Baron confronted Shaw and demanded that Shaw leave the apartment and stay away from the children. Shaw then closed the front door of the apartment to Baron and the children, and Baron banged loudly on the door and called for Shaw to come outside.

A neighbor eventually told Baron that he needed to leave, and at that point, Baron went to his car and began to drive away. In the meantime, Shaw retrieved a large knife from the kitchen of the apartment, exited the apartment through a back door, and approached Baron as he was driving away. Baron stopped and exited his vehicle, and Baron and Shaw then began to scuffle in a manner that a witness later described as “play fighting.” The scuffle was, however, quite real. In the course of the scuffle, Baron was heard to say, “[Shaw] stabbed me,” and Baron then fell to the ground. Baron, who was unarmed, sustained defensive wounds to his hands and two stab wounds to his chest. One of the stab wounds proved to be fatal.

After Baron was stabbed, a witness said something about calling the police, and Shaw fled from the scene. Along the way, Shaw threw his knife into a wooded area. That evening, Shaw called his uncle and said that he had done a terrible thing. Subsequently, Shaw surrendered to police, at which time he volunteered that he had stabbed Baron, that he had done so to protect himself, and that he had thought Baron was about to reach for “something” at the time he stabbed Baron.

On appeal, Shaw contends that the evidence—especially his own testimony—shows that Baron was the aggressor, establishes that Shaw acted in self-defense, and is insufficient to prove that he acted with the requisite intent to sustain his conviction. But as we have explained before, “[i]t is for a jury to determine from all the facts and circumstances whether a killing is intentional and malicious.” White v. State, 287 Ga. 713, 715(1)(b), 699 S.E.2d 291 (2010) (citation omitted). “Likewise, the issues of witness credibility and justification are for the jury to decide, and the jury is free to reject a defendant's claim that he acted in self-defense.” Id. (citation omitted). “On appeal[,] this Court does not resolve conflicts in trial testimony or reweigh the evidence.” Hall v. State, 287 Ga. 755, 756(1), 699 S.E.2d 321 (2010) (citation omitted). Viewing the evidence in the light most favorable to the verdict, we conclude that it was sufficient to authorize a rational jury to find beyond a reasonable doubt that Shaw was guilty of malice murder. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Webb v. State, 284 Ga. 122, 123(1), 663 S.E.2d 690 (2008); Thompson v. State, 283 Ga. 581, 581(1), 662 S.E.2d 124 (2008).

2. Shaw asserts that the trial court erred when it failed to charge the jury that one acting in defense of self has no duty to retreat.² At trial, however, Shaw neither requested a charge on the duty to retreat nor objected when the trial court failed to give such a charge. As such, we review the failure to charge on the duty to retreat only for plain error.³ Alvelo v. State, 290 Ga. 609, 614(5), 724 S.E.2d 377 (2012). As we have explained before, a failure to charge amounts to plain error only to the extent that “[the failure to charge] was erroneous, the error was obvious, [the failure to charge] likely affected the outcome of the proceedings, and the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” White v. State, 291 Ga. 7, 8(2), 727 S.E.2d 109 (2012) (citation omitted).

Assuming that a charge on the duty to retreat should have been given by the trial court even without a request, see Alvelo, 290 Ga. at 615(5), 724 S.E.2d 377, plain-error analysis, which must be distinguished from harmless-error analysis, “requires the appellant to make an affirmative showing that the error probably did affect the outcome below. See [United States v.] Olano, 507 U.S. [725,] 734(II)(A) [ , 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ].” Wagner v. State, 311 Ga.App. 589, 594, 716 S.E.2d 633 (2011) (Blackwell, J., concurring specially) (cited in Kelly, 290 Ga. at 33(2)(a), 718 S.E.2d 232) (citation omitted). See also Jackson v. State, –––Ga.App. ––––, ––––(2), 739 S.E.2d 86 (2013). Shaw had a fair opportunity to present evidence of his claim of self-defense through his own testimony at trial. And the trial court charged the jury extensively on self-defense, including the circumstances in which force in defense of self is justified, the reasonableness of a belief that force is necessary, and threats or menaces that may lead to such a reasonable belief. The charges given in this case fairly informed the jury as to the law of self-defense. Having reviewed the entire transcript of the trial, including the entire jury charge, we conclude that Shaw has failed to affirmatively show that the failure to charge on duty to retreat probably affected the outcome of the trial.⁴ See DeLeon v. State, 289 Ga. 782, 783–784(4), 716 S.E.2d 173 (2011); Edmonds v. State, 275 Ga. 450, 454(4), 569 S.E.2d 530 (2002).

3. Shaw also contends that he was denied the effective assistance of counsel at trial. To prevail on a claim of ineffective assistance, Shaw must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that the performance of his lawyer was deficient, Shaw must show that the lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687–688(III)(A), 104 S.Ct. 2052. See also Kimmelman v. Morrison, 477 U.S. 365, 381(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to prove that he was prejudiced by the performance of his lawyer, Shaw must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694(III)(B), 104 S.Ct. 2052. See also Williams v. Taylor, 529 U.S. 362, 391(III), 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, 477 U.S. at 382(II)(C), 106 S.Ct. 2574. We conclude that Shaw has failed to carry his burden.

(a) First, Shaw claims that his lawyer was ineffective because he failed to call the Harbin children as witnesses at trial. According to Shaw, the children could have testified, among other things, that Baron had put a baseball bat and crowbar into the trunk of his vehicle before he drove to his fatal confrontation with Shaw, and such testimony, Shaw says, would have supported the claim that Shaw was merely acting in defense of self. We are not persuaded that the defense lawyer was ineffective in this respect.⁵

Although the lawyer conceded at the hearing on the motion for new trial that the children might have been able to offer some helpful testimony, he explained that he decided not to call them as witnesses at trial because much of the helpful testimony they might offer could be elicited from other witnesses,⁶ and in any event, the lawyer was concerned about putting the children through the stress of testifying. The reasons given by the lawyer in this case for not calling the children are, we think, reasonable ones. After all, a reasonable lawyer might reasonably worry about the way in which a jury might perceive the defendant putting the children of his victim through the stress of testifying at trial, especially when the children could only offer evidence that was largely cumulative of other evidence adduced at trial. And besides what the lawyer in this case identified as his subjective reasons for not calling the children,⁷ a reasonable lawyer might also have concluded that testimony about a baseball bat and crowbar in the trunk—the very testimony that, Shaw contends, should have motivated his lawyer to call the children—would not have been very helpful, considering that Shaw never claimed that he knew Baron had a bat or crowbar, much less that Baron threatened Shaw with a bat or crowbar or wielded such an instrument in his presence. Indeed, Shaw testified at trial, but he said nothing at all about a bat or crowbar and instead claimed that he believed that Baron might have a gun in his pocket.⁸

About deficient performance, the United States Supreme Court has explained that we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689(III)(A), 104 S.Ct. 2052 (citation and punctuation omitted). It is settled “that the decision as to which defense witnesses to call is a matter of trial strategy and tactics and that tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.” Hubbard v. State, 285 Ga. 791, 794(3), 683 S.E.2d 602 (2009) (citations and punctuation omitted). In this case, we cannot say that no competent attorney would have failed to call the children as witnesses at trial, even knowing that the children might testify that Baron put a bat and crowbar in his trunk before his confrontation with Shaw. Accordingly, Shaw has failed to show that his trial lawyer performed in an objectively unreasonable way when the lawyer failed to call the Harbin children as witnesses.⁹

(b) Shaw also claims that his trial lawyer was ineffective because he failed to request a continuance to obtain photographs depicting scrapes that Shaw had on his arm following his scuffle with Baron, photographs of which his lawyer became aware, Shaw says, only when Shaw testified at trial that a detective had taken such photographs.¹⁰ But at the hearing on his motion for new trial, Shaw never asked his lawyer why he did not ask for a continuance to obtain the photographs. As we have explained, when “trial counsel does not testify at the motion for new trial hearing about the subject, it is extremely difficult to overcome” the presumption that his conduct was reasonable. Higginbotham v. State, 287 Ga. 187, 190–191(5)(a), 695 S.E.2d 210 (2010) (citation and punctuation omitted). In the circumstances presented here, a reasonable lawyer might have thought it better to proceed to the close of the evidence without delay, especially since the photographs only depicted “scrapes,” and it already was undisputed that Baron and Shaw had scuffled prior to the stabbing. Moreover, a reasonable lawyer might also have assessed the likelihood of the trial court allowing a continuance in the middle of trial as extremely low, considering that Shaw himself obviously had knowledge of the photographs prior to trial. See Slade v. State, 270 Ga. 305, 307–308(2), 509 S.E.2d 618 (1998). For these reasons, we conclude that Shaw has failed to show that no competent lawyer would have failed to request a continuance in these circumstances, and his claim of ineffectiveness with respect to a continuance has no merit.

(c) Finally, Shaw claims that his trial lawyer was ineffective because he failed to request a jury instruction that, even if Baron was unarmed, hands alone may constitute a deadly weapon.¹¹ Shaw testified, however, in support of his claim of self-defense that he thought that Baron might have a gun. And the trial court's extensive charges on self-defense, also discussed in Division 2 above, included charges on the use of deadly force to prevent the commission of a forcible felony, the definition of a forcible felony, and the definition of aggravated assault. These charges were “more than sufficient to enable the jury to intelligently consider [Shaw's] defense.” Gear v. State, 288 Ga. 500, 504(4), 705 S.E.2d 632 (2011). Having reviewed the entire jury charge, as well as all the rest of the trial transcript, we conclude that there is no reasonable probability that the outcome of the trial would have differed if the deadly weapon charge about which Shaw complains had been requested and given, and any failure to request this charge, therefore, did not prejudice Shaw, even if his lawyer performed deficiently by failing to request it.¹² See Gear, 288 Ga. at 504(4), 705 S.E.2d 632; Lewis v. State, 302 Ga.App. 506, 509–510(c), 691 S.E.2d 336 (2010); Lott v. State, 281 Ga.App. 373, 376(4), 636 S.E.2d 102 (2006).

Judgment affirmed.

BLACKWELL, Justice.

All the Justices concur.